Harris v. Board of Trustees University of Alabama et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/23/2013. (JLC)
2013 May-23 PM 04:48
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UAB HEALTH SYSTEM,
) Case No.: 2:11-CV-2446-VEH
THIS CAUSE is before the court on Defendant’s Motion for Summary
Judgment (Doc. 47) (the “Motion”) filed on November 16, 2012. Plaintiff responded
on December 6, 2012. (Doc. 51.) Defendant replied on December 20, 2012. (Doc.
53.) The Motion is now ripe for disposition.
From 1978 to 2004, Plaintiff Elaine Harris (black female, 61) (“Harris”)
worked as a Licensed Practical Nurse (“LPN”) for the University of Alabama
In 2004, Harris retired and immediately went to work for the
Defendant, the UAB Health System (the “System”) in its Addiction Recovery
Program (“ARP”). The ARP is part of the Center for Psychiatric Medicine at
University Hospital. Harris was a full-time employee.
The ARP has two components: a clinical side, staffed with counselors, and a
medical side, staffed with nurses and Patient Care Technicians. When Harris started
work at the ARP, Dawn Hamby (white female, 56) (“Hamby”), a UAB employee, was
managing the medical side of the ARP. Hazel Woodward (white female, 61)
(“Woodward”), an exempt, salaried UAB employee, was the Program Manager for
the ARP. Because Hamby and Woodward worked for UAB, not the System, the
System had no control over their pay. (Doc. 48-7 at 2, ¶ 3.) Both Hamby and
Woodward reported to Charmaine Prosch (white female, 59), the Administrative
Director of Psychiatric Services. Later, both Patrice Jones (white female, 58) and
Steve Nasiatka (white male, 53) occupied this position. The Administrative Director
reported to Deborah McGrew (white female, 37), an Associate Vice President.
Hamby is a Registered Nurse (“RN”). As the manager of the ARP’s medical
staff, Hamby performed patient assessments, supervised the LPNs, prepared
schedules, assigned patients, divided duties among staff members, kept up with
employee time and attendance, and administered evaluations and discipline. Hamby
also performed some duties of a nurse manager, including attending department
meetings and safety classes. For her work, Hamby received regular RN pay of $28.44
an hour, a Charge Nurse premium of $1.00 an hour, and “on call” pay of $1.50 an
hour. Hamby also had an office on the fourth floor. In February 2007, Hamby
resigned from her position and went to work for the University of Alabama Health
Upon Hamby’s resignation, Prosch approached Harris about taking over
Hamby’s role in the ARP. Prosch told Harris she would get Hamby’s office, her
beeper, her keys, would be on call, and would manage LPNs and PCTs. Harris
replied that she would need an increase in pay to correspond with the increase in
responsibilities. Prosch said that there was no money for a pay increase.
Nonetheless, Harris assumed Hamby’s role in the ARP. Her duties were
substantially similar to those performed by Hamby. (See Doc. 48-1 at 20–21.) Harris
did not perform patient assessments, something Hamby had done. However, Harris
did supervise PCTs, something Hamby had not done. In her new role, Harris received
her LPN pay of $19.19 an hour, a Charge Nurse premium of $1.00 an hour, and “on
call” pay of $1.50 an hour. Harris also got Hamby’s office on the fourth floor.
In 2008, Prosch left the System. Just before she left, Harris approached her
about a raise. Prosch told her she could not do anything because she was leaving.
After Prosch left, Patrice Jones became the interim Administrative Director. Harris
also approached her about a raise, and she said that she would look into it. Just
before Jones stepped down from this position in August 2008, she promised to talk
to Nasiatka, the incoming Administrative Director, about Harris’s pay.
Prior to becoming the Administrative Director, Nasiatka conducted a computer
software training session for the LPNs in the ARP, including Harris. During this
training, Nasiatka commented that the LPNs should buy the book “Computer for
Dummies.” (Doc. 48-1 at 39.)
After Nasiatka became Administrative Director, he met with Harris several
times to discuss how the ARP operated. As Harris explained, “[Nasiatka] would drill
me and drill me for hours about how the program functioned—how it functioned, why
it functioned that way, et cetera, et cetera, et cetera. He would really, really—I don’t
know if he was trying to learn how to run the [ARP] and that was his method because
he knew nothing about it, but the process he used, five hours a day sitting with
anybody is no fun, and especially with a harsh person.” (Doc. 48-1 at 57.)
Additionally, Nasiatka made comments about Harris’s status as a retired
employee. He referred to her and other retired employees as “double dippers” and
said they were trying to have their cake and eat it too. (Doc.48-1 at 40.)
Harris twice approached Nasiatka about a raise. Both times, Nasiatka brushed
her off, saying there was no money for a raise at that time.
In May 2009, McGrew assumed responsibility for the Center for Psychiatric
Medicine, which includes the ARP. She learned that the ARP was losing $1.2 million
a year and was not operating within its budget. McGrew and Nasiatka began
assessing the ARP’s financial situation, with Nasiatka focused on staffing.
At the same time, Navigant, an outside consulting firm, was conducting an
assessment of University Hospital’s overall operations, including staffing. (Doc. 49
at 11, ¶ 33; Doc. 48-5 at 2, ¶ 6.) Navigant issued its report in the summer of 2009.
(Doc. 49 at 11, ¶ 33; Doc. 48-1 at 25.) The Navigant Report recommended that the
Center for Psychiatric Medicine eliminate three full time employees. The Navigant
Report further concluded that the clinical side of the ARP was overstaffed but that the
medical side of the ARP was staffed appropriately. McGrew’s boss told her that she
must cut three employees, but gave her some time to “fully assess the situation.”
(Doc. 48-5 at 2, ¶ 6.)
McGrew and Nasiatka contend that the Navigant Report was not accurate
because it did not account for the way the ARP actually operates.1 Further, Nasiatka
contends that the use of employees working overtime shifts (as well as employees
from a float pool) created significant cost overruns on the medical side of the ARP.
(Doc. 48-6 at 5, ¶ 11–12.) Based on Nasiatka’s analysis, he and McGrew decided to
reorganize the medical side of the ARP.
The court has already denied Harris’s motion to strike McGrew and Nasiatka’s
testimony regarding the Navigant Report. (Doc. 57.)
As part of this reorganization, they moved Harris from a management position
to a floor nurse position, eliminated her “on call” pay, and limited overtime for the
ARP’s medical staff. (Doc. 48-6 at 5, ¶ 11–12.) Nasiatka transferred Harris’s “on
call” duties to Woodward, a salaried employee. By eliminating Harris’s “on call”
pay, Nasiatka saved the ARP over $10,000. The reorganization did not eliminate any
full time employees in the ARP. Thus, before and after the reorganization, the ARP
had five LPNs—two white and three black. However, the ARP did not replace
employees who retired or resigned. After the reorganization, Harris kept her Charge
Nurse designation and her Charge Nurse premium of $1.00 an hour.
In September 2009, Nasiatka and Woodward told Harris about the
reorganization. They explained the change in her duties and asked her to turn in her
pager. Harris then said, “I see two white people trying to bring down a black
woman.” (Doc. 48-1 at 60.) Nasiatka told Harris she should talk to Human
About six weeks after Nasiatka moved Harris to the floor nurse position,
Nasiatka told her to move out of her office on the fourth floor. Nasiatka contends that
he and McGrew had made this decision when they decided to move Harris to a floor
nurse position. However, he did not immediately implement the decision because he
wanted to give Harris time to adjust to her new position.
Harris moved her office to a room on the second floor which had an attached
restroom used for urine drug screens. Harris asked Nasiatka and Woodward to use
a different room that was being used as a storage closet. (Doc. 48-1 at 44.) They
refused her request.
In November 2009, Nasiatka came to a nurse’s station (presumably on the
second floor) and yelled at Harris in front of several other staff members.
Specifically, Nasiatka told Harris to stay out of management’s business. (Doc. 48-1
On February 2, 2010, Harris filed a charge of discrimination with the EEOC
alleging race, sex, and age discrimination as well as retaliation. The EEOC issued
Harris a right-to-sue letter in April 2011. Harris timely filed her complaint on July 5,
In November 2011, Harris was injured at work. She saw a doctor who cleared
her to return to work with restrictions the next day. However, Harris believed the
doctor had put her off work for about a week. Harris did not report to work the next
day, and, as a result, she received a verbal reprimand. This reprimand did not affect
Harris’s salary, benefits, or terms and conditions of employment. (Doc. 49 at 16–17,
¶ 54.) However, Harris did receive a low performance review for 2011. Prior to
2011, Harris received only excellent performance reviews.
Harris initially alleged eight claims against both the Defendant, the UAB
Health System, and the Board of Trustees of the University of Alabama. In its
Memorandum Opinion of February 27, 2012, this court described Harris’s claims as:
Race discrimination (based on unequal pay, hostile work environment,
and disparate impact) under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. (“Title VII”);
Retaliation under Title VII;
Retaliation under 42 U.S.C. § 1981, brought by and through 42 U.S.C.
Violation of the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution, brought by and through § 1983;
Age discrimination under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.;
Breach of contract under state law;
Quantum Meruit under state law; and
Attorneys Fees under 42 U.S.C. § 1988.
(Doc. 26 at 4.) Both the System and the Board of Trustees moved to dismiss Harris’s
claims. (Docs. 13 & 14.) The court granted the Board’s motion, and dismissed all
Harris’s claims against it. (Doc. 27.) As a result, the court directed the clerk to
terminate the Board as a defendant. On the other hand, the court denied the System’s
motion in part. While the court dismissed Harris’s § 1981 and Equal Protection
claims against the System, it allowed Harris’s other claims to proceed to discovery.
Now, the System has moved for summary judgment on Harris’s surviving
claims. To resolve the Motion, the court must address the following five claims: (1)
race discrimination under Title VII; (2) retaliation under Title VII; (3) age
discrimination under the ADEA; (4) breach of implied contract; and (5) quantum
meruit.2 The court will address each in turn.
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R .Civ. P.
56(a). “All reasonable doubts about the facts” and “all justifiable inferences” are
resolved in favor of the nonmoving party. See Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).3 A dispute is genuine “if the evidence is such that a
Because Harris’s claims fail on the merits, the court will not address Harris’s claim for
Rule 56 was amended in 2010. The Advisory Committee was careful to note, however,
that “[t]he standard for granting summary judgment remains unchanged.” Fed. R. Civ. P. 56
advisory committee’s note to 2010 amendments. Consequently, cases interpreting the previous
version of Rule 56 are equally applicable to the revised version.
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A fact is material if it
“might affect the outcome of the suit under the governing law . . . . Factual disputes
that are irrelevant or unnecessary will not be counted.” Id. The substantive law will
identify which facts are material and which are irrelevant. Id.
The summary judgment analysis varies somewhat depending on which party
bears the burden of proof at trial. See Fitzpatrick, 2 F.3d at 1115–17 (citing United
States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir. 1991) (en banc)).
If the moving party would bear the burden of proof on an issue, then it may meet its
burden on summary judgment only by presenting positive evidence demonstrating an
absence of a genuine issue of material fact—i.e., facts that would entitle it to a
directed verdict if not controverted at trial. Id. at 1115. Once the moving party
makes such a showing, the burden shifts to the nonmoving party to produce
significant, probative evidence demonstrating a genuine issue for trial. Id.
If the nonmoving party would bear the burden of proof on an issue at trial, then
the moving party can satisfy its initial burden on summary judgment in either of two
ways. Id. at 1115–16. First, the moving party may produce affirmative evidence
negating a material fact, thereby demonstrating that the nonmoving party will be
unable to prove its case at trial. Id. at 1116. If the moving party produces such
evidence, then the nonmoving party must respond with positive evidence sufficient
to defeat a motion for a directed verdict at trial. Id.
Second, the moving party may affirmatively show the absence of evidence in
the record to support a judgment for the nonmoving party on a material element. Id.
The moving party is not required to produce evidence negating its opponent’s claim,
but it must direct the court to the hole in the nonmoving party’s case. Id. at 1115–16.
If the moving party satisfies this burden, the nonmoving party may either point to
evidence in the record which would sustain a judgment at trial, or may also come
forward with additional evidence which would sustain a judgment. Id. at 1116–17.
The nonmoving party cannot simply rest on mere allegations; he must set forth
evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S. Ct. 2174, 2183
(1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130,
McDonnell Douglas Burden Shifting Framework, Generally
Under Title VII, a plaintiff may attempt to show unlawful discrimination in any
of “three ways:  by presenting direct evidence of discriminatory intent;  by
meeting the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817 (1973); or  by demonstrating through statistics a pattern of
discrimination.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.
1990). The second method, the now familiar McDonnell Douglas burden shifting
framework, is particularly relevant here. The court will introduce it by quoting the
Under McDonnell Douglas, a plaintiff must first establish a prima
facie case of discrimination, which “in effect creates a presumption that
the employer unlawfully discriminated against the employee.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089,
67 L.Ed.2d 207 (1981). [The precise elements of a prima facie case vary
depending on the type of discrimination alleged.]
Once the plaintiff establishes a prima facie case of [unlawful]
discrimination, the burden shifts to the employer to rebut the
presumption of discrimination with evidence of a legitimate,
nondiscriminatory reason for the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802–03, 93 S. Ct. 1817. “This burden
is one of production, not persuasion . . . .” Reeves, 530 U.S. at 142, 120
S. Ct. 2097. Thus, “[t]o satisfy that burden of production, ‘[t]he
defendant need not persuade the court that it was actually motivated by
the proffered reasons. It is sufficient if the defendant’s evidence raises
a genuine issue of fact as to whether it discriminated against the
plaintiff.’” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th
Cir.1997) (quoting Burdine, 450 U.S. at 254–55, 101 S. Ct. 1089). If the
employer produces evidence of a legitimate, nondiscriminatory reason
for the adverse action, the plaintiff is afforded an opportunity to show
that the employer’s stated reason is a pretext for discrimination. See,
e.g., Reeves, 530 U.S. at 143, 120 S. Ct. 2097; McDonnell Douglas, 411
U.S. at 804, 93 S. Ct. 1817.
The plaintiff can show pretext “either directly by persuading the
court that a discriminatory reason more likely motivated the employer
or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.” Burdine, 450 U.S. at 256, 101 S. Ct. 1089. “In
other words, the plaintiff has the opportunity to come forward with
evidence, including the previously produced evidence establishing the
prima facie case, sufficient to permit a reasonable factfinder to conclude
that the reasons given by the employer were not the real reasons for the
adverse employment decision.” Combs, 106 F.3d at 1528. If a plaintiff
produces sufficient evidence that the employer’s proffered reason is
merely pretextual, that evidence may sometimes be enough to preclude
summary judgment in favor of the employer. See Reeves, 530 U.S. at
148, 120 S. Ct. 2097. See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 511, 113 S. Ct. 2742, 125 L. Ed.2d 407 (1993) (“The factfinder’s
disbelief of the reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to show intentional discrimination.”).
Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308–09 (11th Cir. 2012)
“The prima facie case method established in McDonnell Douglas was never
intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly
way to evaluate the evidence in light of common experience as it bears on the critical
question of discrimination.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715, 103 S. Ct. 1478, 1482 (1983) (internal quotation marks and citation
omitted); see Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).
Harris alleges three ways that the System discriminated against her on account
of her race. First, she contends that the System refused to pay her equally with white
employees. Second, she contends that the System treated her less favorably than
white employees. Third, she contends that the System’s reorganization of the ARP
had a disparate impact on African Americans. For the reasons that follow, each of
these claims fail.
Initially, the court notes that Harris has not offered any direct evidence of race
discrimination. (Doc. 51 at 19–25.) In fact, Harris testified that she never heard any
of her supervisors—Charmaine Prosch, Steve Nasiatka, or Deborah McGrew—use
racial language or epithets. (Doc. 48-1 at 40, 49.) Nor does she have any second
hand accounts of these individuals using racial language or epithets. (Id.) Because
Plaintiff offers no direct evidence of race discrimination, the court will analyze these
claims under the McDonnell Douglas burden shifting framework.
Unequal Pay Claim
Prima Facie Case
To establish a prima facie case on an unequal pay claim under Title VII, a
plaintiff must show that (1) she is a member of a protected group, (2) she received
low wages, (3) similarly situated persons outside the protected group received higher
wages, and (4) she was qualified to receive the higher wages. See, e.g., Cooper v.
Southern Co., 390 F.3d 695, 735 (11th Cir. 2004) (citation omitted), overruled on
other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S. Ct. 1195, 1197
(2006); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir.
1992); MacPherson v. Univ. of Montevallo, 922 F.2d 766, 774 (11th Cir. 1991)
(discussing the prima facie case in the age discrimination context) (citation omitted);
White v. ThyssenKrupp Steel USA, LLC, 743 F. Supp. 2d 1340, 1344 (S.D. Ala.
2010); see also Doc. 51 at 21 (citing Cooper v. Southern Co., 390 F.3d 695, 735 (11th
This formulation of the prima facie case is not without criticism. For example,
Chief Judge William H. Steele of the Southern District of Alabama, in White v.
ThyssenKrupp Steel USA, LLC, concludes that the fourth element—that a plaintiff be
qualified to receive higher wages—is not part of the prima facie case. Judge Steele
notes that, in Mulhall v. Advance Sec., Inc., 19 F.3d 586, 598 (11th Cir. 1994), the
Eleventh Circuit did not require the plaintiff to establish the fourth element to make
out a prima facie case. Instead, the court required the plaintiff to show only: (1) that
she was a member of a protected class, and (2) that her job was substantially similar
to higher paying jobs occupied by members outside the protected class. See White,
743 F. Supp. 2d at 1350–51 (referencing Mulhall v. Advance Sec., Inc., 19 F.3d 586
(11th Cir. 1994)). Judge Steele further notes that Mulhall’s formulation of the prima
facie case is its holding, and that Mulhall predates other cases which include the
fourth element.4 Id. Thus, Judge Steele concludes that, under the prior panel
precedent rule, the fourth element is not part of the prima facie case for an unequal
pay claim under Title VII. See id. at 1347–48.
Nonetheless, the plaintiff in White had conceded that all four elements are part
of the prima facie case. White, F. Supp. 2d at 1350–51. Therefore, Judge Steele
analyzed the plaintiff’s claim under the standard set forth above. Harris has done the
same thing as the plaintiff in White. In her Response, Harris says that she must show
“that (1) she belongs to a racial minority, (2) [s]he received low wages, (3) similarly
situated comparators outside the protected class received higher wages, and (4) she
was qualified to receive the higher wage.” (Doc. 51 at 21) (citing Cooper, 390 F.3d
at 735). Thus, the court will use Harris’s formulation of the prima facie case.
Turning to the merits of Harris’s prima facie case, the first element is easily
met. Harris is an African American female. The court assumes the second element
is also met. Harris was paid approximately ten dollars less than Hamby, her
Third Element—Plaintiff is similarly situated to a
person outside the protected class.
Judge Steele suggests that the Eleventh Circuit purported to add the fourth element in
Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004). See White, 743 F. Supp. 2d at 1347.
However, Cooper postdates Mulhall by a decade.
Harris cannot meet the third element—that a similarly situated person outside
her protected class received higher wages. For an unequal pay claim, “[t]he standard
for ‘similarity’ in Title VII cases is relaxed.” See Mulhall, 19 F.3d at 598 (citing
Miranda, 975 F.2d at 1529)).
A plaintiff only need show that her job was
“substantially similar to higher paying jobs occupied” by individuals outside the
protected class. Id. Such individuals are frequently called comparators.
The parties have identified two potential comparators: Hamby and Woodward.
As discussed below, the parties hotly dispute whether Harris’s job is substantially
similar to either of these comparators. However, the court need not go that far. It is
undisputed that both Hamby and Woodward were employed by the University of
Alabama Birmingham. (Doc. 49 at 4–5, ¶ 6–7.) Neither women were employed by
the UAB Health System. Further, it is not seriously disputed that the System did not
set Hamby and Woodward’s pay. (Doc. 49 at 22; Doc. 48-7 at 2, ¶ 3.) Because
Hamby and Woodward worked for a different employer than Harris, they are not
similarly situated for purposes of Title VII.
But, assuming that Harris could get past the different employer problem, the
court would conclude that Harris is similarly situated to Hamby. Harris replaced
Hamby (Doc. 51 at 13, ¶ 4), and her duties were substantially similar to Hamby’s
duties (Doc. 48-4 at 2, ¶ 8; Doc. 48-1 at 20).
The System contends that Harris’s and Hamby’s jobs were different. This
contention rests exclusively on the fact that Hamby performed patient assessments
while Harris did not. (Doc. 49 at 22; Doc. 48-4 at 2, ¶ 7–8; Doc. 48-1 at 20.)
However, the significance of this distinction is unclear. The record does not say
whether patient assessments was a central component of Hamby’s job, or whether it
was a relatively minor one. Without evidence either way, the court will not speculate.
And, given the relaxed standard of similarity, the court concludes that Harris was
similarly situated to Hamby.
The court reaches the opposite conclusion with Woodward. First, Harris does
not even attempt to compare her job to Woodward’s job. Therefore, Harris has
waived this issue. But, even if Harris had not waived this issue, the court would
reach the same conclusion.
It is undisputed that Woodward’s job involved
“promoting and marketing the ARP, acting as a program liaison with various
professional boards, insuring regulatory compliance, and creating and managing the
budget.” (Doc. 49 at 5, ¶ 7; Doc. 48-6 at 2, ¶ 3.) These duties are substantially
different from Harris’s duties.
Fourth Element—Plaintiff is qualified to receive
Assuming that Harris could show that she was similarly situated to Hamby, she
has not established the fourth element of her prima facie case. It is undisputed that
Harris and Hamby have different educational backgrounds and licenses. Specifically,
Hamby is an RN and Harris is an LPN. And, Harris admits that RNs are usually paid
more than LPNs. (Doc. 48-1 at 20.)5
Harris offers two reasons that Hamby’s superior qualifications do not justify
higher pay. First, Harris contends that the System put Harris in Hamby’s job, and,
therefore, it is estopped from questioning her qualifications. (Doc. 51 at 22.) If the
issue was whether or not Harris is qualified to do Hamby’s job, this argument might
hold some weight. But that is not the issue. The issue is whether Harris has shown
she was entitled to receive Hamby’s wages. Harris offers no evidence to show that
someone with her education and licenses is entitled to the same pay as an RN like
Hamby. Additionally, Harris offers no evidence showing that the System does not
Specifically, Harris testified that:
And you said you know [Hamby] made more money than you did?
Yes, I’m sure she did.
And why are you sure?
Because she’s an RN.
Okay. And RNs are typically paid more than LPNs?
(Doc. 48-1 at 20.)
set its employees’ pay based on their education and licenses. (Doc. 48-7 at 2, ¶ 3.)
In fact, Harris’s own testimony refutes any such allegation. (Doc. 48-1 at 20.) As an
LPN, Harris was simply not entitled to the same pay as Hamby, an RN. The fact that
they were performing substantially the same duties does not matter.
Harris’s second counter argument also fails. She contends that, with one
exception, she received excellent performance reviews. (Doc. 51 at 22.) This
argument boils down to an accusation of “that’s not fair.” It may not be fair, but Title
VII does not transform this court into a “super personnel department.” Lee v. GTE
Fla., Inc., 226 F.3d 1249, 1254 (11th Cir. 2000) (citation omitted). Instead, Title VII
authorizes this court “to [stop] unlawful hiring practices,” such as discrimination
based on race. Id. Treating an employee unfairly (while not condoned) is not an
unlawful employment practice under Title VII.
Legitimate Nondiscriminatory Reason
Assuming that Harris could somehow establish a prima facie case on her
unequal pay claim, the burden would shift to the System to produce a legitimate,
nondiscriminatory reason for the difference in Harris’s pay. In this context, “the
defendant’s burden in rebutting the prima facie case is ‘exceedingly light.’” Mulhall,
19 F.3d at 586 (quoting Perryman v. Johnson Prods., Co., 698 F.2d 1138, 1142 (11th
Cir. 1983)). Here, the System contends that Harris’s pay was lower because Harris
was an LPN and Hamby was an RN. This articulated reason shifts the burden back
Harris has not shown that the System’s legitimate, nondiscriminatory reason
was merely a pretext for discrimination. Her own testimony establishes that RNs are
typically paid more than LPNs. (Doc. 48-1 at 20.) Thus, the difference between her
pay and Hamby’s pay does not support an inference of race discrimination.
Nor has Harris produced other circumstantial evidence to support her claim.
For example, Harris never heard Prosch, Nasiatka, or McGrew use racial language or
epithets. (Doc. 48-1 at 40, 49.) The primary reason Harris believes these individuals
dislike African Americans is the way they responded to her complaints about her pay.
As Harris put it, “[Y]ou can tell when somebody is treating you a certain way, you
know, kind of overlooking what you’re trying to tell them or express to them, it just,
it’s not important. That’s the feeling I would get.” (Doc. 48-1 at 40.) That Harris
“felt” treated “a certain way” is not enough to infer pretext here.
Harris fails to make out a prima facie case of race discrimination regarding her
pay. And, even if she could make out a prima facie case, she has not shown pretext.
Therefore, the Motion is due to be GRANTED on Harris’s equal pay claims.
Terms and Conditions of Harris’s Employment
Harris next contends that the System altered the terms and conditions of her
employment because of her race. To establish a prima facie case of disparate
treatment based on race, “a plaintiff must generally show that (1) [she] is a member
of a protected class; (2) [she] suffered an adverse employment action; (3) the
employer treated similarly situated employees outside of the protected class more
favorably; and (4) [she] was qualified to do the job.” Scott v. Suncoast Beverage
Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002) (citation omitted).
An adverse employment action is one which “in some substantial way, alter[s]
the employee’s compensation, terms, conditions, or privileges of employment,
deprive[s] . . . her of employment opportunities, or adversely affect[s] . . . her status
as an employee.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (internal
quotation marks and citations omitted).
Here, Harris argues that she suffered two adverse employment actions: (1) a
demotion and (2) the additional duties assigned to her after Hamby’s departure. The
court will address each in turn.
Prima Facie Case
The reorganization of the ARP substantially changed Harris’s job duties. She
lost her management position and began working as a floor nurse. (Doc. 51 at 14,
¶ 11; Doc. 49 at 11, ¶ 36.) Additionally, she lost her on-call pay, was restricted from
working overtime, and lost her office.6 Although Harris does not expressly label this
event a demotion, the court will treat it as a demotion. Thus, Harris has established
the first two elements of her prima facie case. Similarly, Harris has established the
fourth element of her prima facie case—that she was qualified to do the job. The
System offered Harris Hamby’s role in the ARP, and she successfully performed in
this role for over two years. Therefore, the System cannot seriously (and in fact does
not attempt to) dispute that Harris was qualified for her job.
Rather, the System contends that Harris cannot establish a prima facie case
because “as the only charge nurse, she cannot identify a similarly situated comparator
who was treated more favorably.” (Doc. 49 at 24.) The court rejects the System’s
argument. Because Harris was “the only charge nurse,” she cannot possibly show
that another similarly situated charge nurse was treated more favorably. And, given
Harris’s evidence that she was paid less than the previous charge nurse, Hamby, the
court will assume, for purposes of summary judgment, that Harris has established the
third element of her prima facie case.
Legitimate Nondiscriminatory Reason
Because the court assumes that Harris has a prima facie case of discrimination
Harris kept her base pay and her charge nurse premium. (Doc. 49 at 13, ¶ 42.)
related to her demotion, the System must articulate a legitimate, nondiscriminatory
reason for its decision. The System maintains that the ARP was losing 1.2 million
dollars a year.7 (Doc. 49 at 10, ¶ 31.) It reorganized the ARP to save money. (See
Doc. 48-6 at 6, ¶ 14.) In particular, McGrew and Nasiatka decided to move Harris to
a floor nurse position to reduce staffing costs. (Id.) They eliminated her on-call pay,
which alone saved the ARP approximately $10,000. (Doc. 28-6 at 6–7, ¶¶ 13, 14.)
Nasiatka transferred the on-call duties to Woodward, a salaried employee. (Doc. 48-6
at 5, ¶ 13.) Additionally, Nasiatka restricted overtime for everyone on the medical
side of the ARP, not just Harris. (See Doc. 48-6 at 6–7, ¶¶ 12, 14.) It is not seriously
disputed that this action was designed to significantly reduce staffing costs in the
ARP, though the record does not disclose how much. (Id.) Finally, because Harris
was working as a floor nurse, she no longer needed an office. (Doc. 48-6 at 8, ¶ 22.)
These articulated reasons are sufficient to shift the burden back to Harris.
In her Response, Harris disputes that the ARP was losing more than 1.2 million dollars
a year. (Doc. 51 at 7, ¶ 31.) However, the basis for Harris’s dispute is that the System failed to
produce the Navigant Report during discovery. Thus, Harris moved to strike McGrew and
Nasiatka’s testimony regarding the financial health of the ARP. (Doc. 50.) This court denied
Harris’s Motion to Strike. (Doc. 57.) Therefore, Harris cannot dispute that the ARP was losing
money based on her Motion to Strike.
Harris further contends that McGrew and Nasiatka’s testimony is inadmissible hearsay.
(Doc. 51 at 7, ¶ 31.) However, McGrew and Nasiatka certainly have personal knowledge of what
they observed regarding the ARP’s financial health.
Harris has not shown pretext. She has not seriously disputed that the ARP was
losing money. (See note 7 supra.) Additionally, Harris has not shown that the
decision to reorganize the medical side of the ARP was anything more than a poor
Harris points out that the Navigant Report concluded the ARP was overstaffed
on the clinical side, not the medical side. She contends Nasiatka and McGrew should
have cut clinical staff rather than medical staff. (Doc. 48-1 at 46.) Yet, the
reorganization did not cut any staff members on either side of the ARP. Nasiatka
avers that he “did not furlough any regular, full time employees in the ARP as a result
of the reorganization, although we did reduce staff somewhat by attrition.” (Doc. 486 at 6, ¶ 14.) Moreover, Nasiatka avers that the ARP had exactly five (5) LPNs
before the reorganization and exactly five (5) LPNs after the reorganization. (Doc.
49 at 12, ¶ 38; Doc. 48-6 at 6–7, ¶¶ 14, 17.) Harris disputes this fact, but the
testimony she cites actually confirms Nasiatka’s version of events. (See Doc. 51 at
8, ¶38; Doc. 48-1 at 46–47.) The nurse that Harris alleges “lost” her job merely
retired and was not brought on after her retirement. (Doc. 48-1 at 46.) Because the
reorganization did not cut any full time staff members, the Navigant Report does not
demonstrate pretext; it merely shows that Nasiatka and McGrew did not follow its
Furthermore, Harris has not shown that the reorganization was not designed to
significantly reduce staffing costs in the ARP. Nasiatka explained that the medical
side of the ARP was using too many overtime shifts and unnecessarily drawing on
float pool employees. To correct this problem, Nasiatka moved Harris to a floor
nurse position and restricted overtime for the medical staff. (Doc. 48-6 at 5–6,
¶ 11–14.) Harris has not seriously disputed Nasiatka’s testimony.
Finally, Harris has no other evidence to support an inference of race
discrimination related to her demotion. Because Harris has not shown pretext, the
Motion is due to be GRANTED on Harris’s race discrimination claim related to her
Harris further contends that she had to perform several duties in addition to
those performed by Hamby, such as managing Patient Care Technicians. (Doc. 51
at 23.) She contends that these additional duties constitute an adverse employment
action. Assuming that the assignment of these additional duties to Harris constitutes
an adverse employment action (something the court doubts), Harris’s claim would
still fail. Harris began performing these duties when she assumed Hamby’s role in
the ARP. Harris has not shown that other employees were not assigned additional
duties upon assuming a new position.
Finally, Harris contends that the reorganization had a disparate impact on
African Americans. The “disparate impact theory prohibits neutral employment
practices which, while non-discriminatory on their face, visit an adverse,
disproportionate impact on a statutorily-protected group.” E.E.O.C. v. Joe’s Stone
Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000) (citation omitted). To establish a
disparate impact claim, a plaintiff must show (1) a “significant statistical disparity
between” the protected group and the nonprotected group, (2) “that there is a specific,
facially-neutral, employment practice which is the alleged cause of the disparity,” and
(3) that “a causal nexus exists between the specific employment practice identified
and the statistical disparity shown.” Id. (discussing these elements in the gender
discrimination context). The third element requires “statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the exclusion of
applicants for jobs or promotions because of their membership in a protected group.”
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S. Ct. 2777, 2789
Here, Harris cannot establish the first or third elements of a disparate impact
claim. First, she has not shown a significant statistical disparity between African
Americans and non-African Americans in the staffing of the ARP. In fact, the record
shows that no one lost their job because of the reorganization. See Part III.A.2.a.iii
supra. And, even though the reorganization adversely affected Harris and three other
African American nurses, this number is simply too small to demonstrate a significant
Second, Harris has not produced statistical evidence which shows the
reorganization adversely affected African Americans because they are African
American. In fact, the record shows that the reorganization impacted the ARP’s white
and black medical staff equally.8 Thus, the only reasonably inference is that the
reorganization impacted the African American medical staff members because they
were medical staff members, not because they were African American.
Admittedly, the reorganization impacted more African American staff members
than white staff members. As Harris points out, only one out of the ten clinical staff
members was black whereas three of the five LPNs were black. Because the
reorganization did not affect the clinical staff, Harris contends that it adversely
affected African Americans. Essentially, Harris contends that the System decided to
reorganize the medical staff rather than the clinical staff because of race. This
contention is actually a disparate treatment argument, not a disparate impact
argument. Nonetheless, this argument still fails because Harris has not shown that the
The other two LPNs were white. (Doc. 48-6 at 6-7, ¶ 17.)
reorganization was a pretext for discrimination. See Section III.A.2.a.ii. & iii.
For the foregoing reasons, the Motion is due to be GRANTED as to Harris’s
disparate impact claim.
Harris next contends that the System retaliated against her. Title VII prohibits
employers from discriminating against an employee because she has opposed an
unlawful employment practice. See 42 U.S.C. § 2000e-3(a). As with her race
discrimination claims, Harris has no direct evidence of retaliation. Therefore, the
court will analyze Harris’s claims under the McDonnell Douglas burden shifting
To make out a prima facie case of retaliation, Harris must show that “(1) she
engaged in an activity protected under Title VII; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the protected
activity and the adverse employment action.” Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir. 2008) (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir.2001)). For a retaliation claim, an adverse employment action means an action
which “well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Crawford, 529 F.3d at 974 (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006)). To show
a causal connection, a plaintiff must at least show that the decision maker was aware
of the protected conduct. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th
Cir. 2000), overruled on other grounds, Burlington, 548 U.S. at 68, 126 S. Ct. at
2415. Additionally, a plaintiff must show that the protected conduct and the adverse
action were “not wholly unrelated.” Id. (citation omitted). “For purposes of a prima
facie case, close temporal proximity may be sufficient to show that the protected
activity and the adverse action were not wholly unrelated.” Id. (internal quotation
marks and citation omitted). However, when a plaintiff relies on temporal proximity
alone, the proximity must be “very close.” See Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001) (citation omitted).
Here, Harris has identified two activities which she claims are protected under
Title VII: (1) her complaints about her unequal pay and (2) her allegations of race
discrimination. The court will address each in turn.
Complaints about Unequal Pay
Harris contends that she frequently complained about her pay to her
supervisors beginning in 2007. (See Doc. 48-1 at 17.) However, Title VII does not
protect an employee’s general complaints about her pay. See Miller v. Am. Family
Mut. Ins. Co., 203 F.3d 997, 1007–08 (7th Cir. 2000). Instead, an employee’s
complaints must at least mention or suggest that her protected status is at issue. Id.
Nothing in the record suggests that Harris linked her complaints about unequal
pay to her race before September 2009. (See Doc. 48-1 at 60.) In fact, the only
instance in the record where Harris told her supervisors that race was an issue
occurred in 2009. (Doc. 48-1 at 60.) Thus, Harris’s complaints about her pay cannot
support a retaliation claim.
Harris’s Statement to Nasiatka and Woodward
In September 2009, Harris met with Nasiatka and Woodward. At this meeting,
Nasiatka informed Harris that she would return to a floor nurse position. Upon
learning this information, Harris said, “I see two white people trying to bring down
a black woman.” (Doc. 48-1 at 60.) Assuming without deciding that Harris’s
statement constitutes protected activity, the court will proceed to the second and third
elements of Harris’s prima facie case.
Here, the parties have identified four potential adverse employment actions: (1)
Harris’s demotion, (2) Harris’s loss of her office, (3) Harris’s verbal reprimand in
November 2011, and (4) the handling of Harris’s worker’s compensation case. The
first action clearly fails. The decision to return Harris to a floor nurse position is what
prompted her to comment that she saw “two white people trying to bring down a
black woman.” Because Harris’s demotion occurred before her protected activity, it
cannot constitute retaliation.
Similarly, any retaliation claim based on Harris’s verbal reprimand and the
handling of her worker’s compensation case also fails. These events occurred over
two years after her statement to Nasiatka and Woodward. Therefore, these actions
are far too remote in time to sustain a retaliation claim.9
The court reaches a different conclusion regarding Harris’s loss of her office.
The loss of an office might dissuade a reasonable employee from making a charge of
discrimination. Further, this action is not so temporally remote as to be wholly
unrelated. It occurred between six and eight weeks after Harris’s complaint to
Nasiatka and Woodward. (Doc. 49 at 15, ¶ 50.) Because Harris has made out a prima
facie case of retaliation regarding the loss of her office, the burden shifts to the
System to produce a legitimate, nondiscriminatory reason for its decision. See Brown
v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010) (citation omitted).
The System contends that Nasiatka and McGrew had already decided to take
away Harris’s office when they informed Harris about her demotion. (Doc. 49 at
26–27; Doc. 48-6 at 8, ¶ 22.) Nasiatka contends he made this decision because he
And, even if the court were to measure the temporal proximity of Harris’s reprimand
from the filing of her EEOC complaint (February 2, 2010) or the filing of this lawsuit (July 5,
2011), the court would conclude the reprimand was too temporally remote to establish a causal
and McGrew “wanted [Harris] to be working on the floor with patients and providing
leadership to the other LPNs” and because “the CPM needed [Harris’s office] for a
social worker.” (Id.) Nasiatka further contends that he delayed implementing his
decision “to give [Harris] an opportunity to adjust” to the changes in her job. (Doc.
48-6 at 8, ¶ 22.) This articulated reason is enough to shift the burden back to Harris.
See Brown, 597 F.3d at 1181–82 (citation omitted).
Harris has not shown that the System’s articulated reason is false, much less
a pretext for unlawful retaliation. Harris admits that she has no evidence to refute the
System’s legitimate, nondiscriminatory reason for moving her out of her office. (Doc.
51 at 10, ¶ 51.) Instead, Harris contends that Nasiatka moved her to the “pee room,”
a room on the second floor with an attached bathroom used for urine drug screens.
(Doc. 48-1 at 43.) As Harris described it, when the staff needed to do drug screens,
“I would be in [my new office] working or doing something , and they’d just go in
there and pee while I [was] sitting there.” (Doc. 48-1 at 43.) Harris complained
about her “new office” and asked to use a storage room on the second floor instead.
(Doc. 51 at 26; Doc. 48-1 at 44.) However, Nasiatka and Woodward refused to let
her use the storage room as an office. (Id.) This allegation is not enough to show
pretext here. The System was not required to afford Harris the best room available
or retask a room to honor her wishes.
Harris has not shown that Nasiatka, McGrew, Woodward, or anyone else
connected to the System retaliated against her in violation of Title VII. Therefore, the
Motion is due to be GRANTED as to Harris’s retaliation claims.
Hostile Work Environment Claim
Harris alleges that Nasiatka created a hostile work environment. To succeed
on a hostile work environment claim, an employee must show: “(1) [s]he belongs to
a protected group; (2) [s]he was subjected to unwelcome harassment; (3) the
harassment was based on [her] membership in the protected group; (4) it was severe
or pervasive enough to alter the terms and conditions of employment and create a
hostile or abusive working environment; and (5) the employer is responsible for that
environment under a theory of either vicarious or direct liability.” Jones v. UPS
Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (citation omitted).
Additionally, the Eleventh Circuit has made clear that “not all objectionable
conduct or language amounts to discrimination under Title VII.” Jones, 683 F.3d at
1297 (citing Reeves v. C. H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir.
2010) (en banc)). “Only conduct that is ‘based on’ a protected category, such as race,
may be considered in a hostile work environment analysis.” Id. (citing Gupta, 212
F.3d at 584). “Innocuous statements or conduct, or boorish ones that do not relate to
the [race] of the actor or of the offended party (the plaintiff), are not counted.” Id.
Harris contends that the following actions constitute unwelcome harassment
which altered the terms and conditions of her employment:
Nasiatka told Harris and the other LPNs they needed to buy the book
“Computer for Dummies.” (Doc. 48-1 at 39.)
Nasiatka subjected Harris to hostile questioning during their meetings
about the functioning of the ARP. (Doc. 48-1 at 57.)
Nasiatka abruptly took Harris off overtime. (Doc. 48-1 at 133–34, 208.)
Nasiatka screamed at Harris in front of other ARP staff members and
said “I told you to stay out of management’s business.” (Doc. 48-1 at
(See Doc. 51 at 27.)
First, none of these actions have anything to do with Harris’s race. Therefore,
these comments do not constitute unwelcome harassment on the basis of race.
Second, all but Nasiatka’s screaming occurred well before Harris accused Nasiatka
and Woodward of “trying to bring down a black woman.” Therefore, these actions
cannot be in retaliation for Harris’s accusation of race discrimination. Third, one
instance of Nasiatka screaming at Harris is not severe and pervasive harassment such
that it altered the terms and conditions of Harris’s employment.10 Therefore, the
And, even if all four of these events could somehow be lumped together, the court
would still find that the harassment was not severe and pervasive enough to alter the terms of
Motion is due to be GRANTED regarding Harris’s hostile work environment claim.
Age Discrimination Claim
As with her race and retaliation claims, Harris has no direct evidence of age
discrimination. Therefore, the court will analyze her age claim under the McDonnell
Douglas burden shifting framework.
To establish a prima facie case of age
discrimination, a plaintiff must show (1) “that she was a member of the protected
group of persons between the ages of forty and seventy;” (2) “that she was subject to
[an] adverse employment action;” (3) that she was qualified to do the job; and (4) that
a younger person outside the protected age group was treated more favorably.
Kragor, 702 F.3d at 1308 (citation omitted); see Chapman v. AI Transport, 229 F.3d
1012, 1024 (11th Cir. 2000).
Here, Harris alleges that the System discriminated against her by denying her
benefits normally paid to younger employees. (Doc. 51 at 27–28.) To support this
allegation, Harris submits her 2009 election of benefits form. (Doc. 52-2 at 6.) This
document alone offers no point of comparison with any younger employee. Thus,
Harris has not shown that she was treated less favorably than substantially younger
Additionally, Harris contends that Nasiatka called her and other older workers
“double dippers” and said they wanted to have their cake and eat it too. (Doc. 48-1
at 40.) While Harris contends these comments are actionable under the ADEA, Harris
does not explain how they are actionable or otherwise offer any argument regarding
these comments. Thus, this issue is waived.11 See Cont’l Technical Serv., Inc. v.
Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991); Rumph v. Astrue, No.
4:11-CV-3844-VEH, 2013 WL 988006, at * 6 n.3 (N.D. Ala. Mar. 13, 2013) (“The
court is not responsible for addressing underdeveloped arguments made by the
Therefore, the Motion is due to be GRANTED as to Harris’s age
Breach of Contract Claim
Harris contends that the System breached an implied contract to pay her the
same as Hamby. “An implied contract arises where there are circumstances which,
according to the ordinary course of dealing and common understanding, show a
mutual intent to contract. Such a contract must contain all the elements of an express
contract, . . . .” Broyles v. Brown Eng’g Co., 151 So. 2d 767, 770 (Ala. 1963). Under
Alabama law, “[n]o contract is formed without an offer, an acceptance, consideration,
and mutual assent to terms essential to the contract. A contract implied in fact
And, even if Harris has not waived this issue, she has not shown how these comments
affected the terms and conditions of her employment. Therefore, she has not established a prima
facie case of age discrimination.
requires the same elements as an express contract.” Steiger v. Huntsville City Bd. of
Educ., 653 So. 2d 975, 978 (Ala. 1995) (internal citations omitted).
Here, Harris has identified no action by the System which a reasonable person
would believe to be an offer to pay Harris what Hamby was making. In fact, the
record shows that the System consistently turned down Harris’s requests for a raise.
(See Doc. 48-1 at 40; Doc. 52-1 at 4.) Thus, the Motion is due to be GRANTED as
to Harris’s breach of contract claim.
Finally, Harris contends that she had a reasonable expectation to be paid what
Hamby was making. “In order to succeed on a claim based on a theory of quantum
meruit, the plaintiff must show that [she] had a reasonable expectation of
compensation for [her] services. However, when an express contract exists, an
argument based on a quantum meruit recovery in regard to an implied contract fails.
The existence of an express contract on a given subject generally excludes an implied
agreement on the same subject.” Carroll v. LJC Def. Contracting, Inc., 24 So. 3d
448, 459 (Ala. Civ. App. 2009) (internal citations and quotation marks omitted).
Here, the parties have not directed the court to an express employment contract
between Harris and the System. Nonetheless, Harris’s quantum meruit claim fails
because Harris has not shown that she had a reasonable expectation of compensation
at the same rate as Hamby. As noted in Section III.E supra, the System consistently
told Harris it could not pay her equivalent to Hamby. Therefore, the Motion is due
to be GRANTED as to Harris’s quantum meruit claim.
For the foregoing reasons, Defendant UAB Health System’s Motion for
Summary Judgment (Doc. 47) is hereby GRANTED. The court will enter a separate
final judgment. Accordingly, Defendant’s Motion to Strike (Doc. 54) is MOOT, and
the Clerk is DIRECTED to TERM that motion.
DONE and ORDERED this the 23rd day of May, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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